Essays on law, leadership, technology, and "things" – and arts, culture, intellectual property, and commons – and entrepreneurship and innovation – and higher education – and Pittsburgh and urbanism. One law professor's views of the world.

About the author

I have been posting at madisonian.net since 2004. From 2003 to 2011, I also wrote at Pittsblog, about regional economic development and the re-emergence of one particularly interesting city and region: Pittsburgh, Pennsylvania. Pittsburgh-themed posts will appear here from time to time.

I publish a related calendar of academic events in intellectual property and information technology law and policy at IP and IT Conferences.

Me, I worry more about the implications for journalism. So Belgian newspapers don’t want Google to index their content? Fine. What is Google’s BATNA here? Google can walk away. Will anyone miss the Belgian media? Or the French media, who are up to bat next? That’s a serious question. If Arthur Sulzberger is now speculating out loud about what the future holds for the New York Times (echoing, as it’s been noted, Jeff Jarvis), then why should we worry about whether Google (and others) have to pay to link? Why shouldn’t we expect the media to pay Google to carry links to their content? And if the media aren’t prepared to adjust their business models to deal with paying for electronic distribution — what becomes of them? More below the jump.

Those are rhetorical questions, but I throw them out there to suggest that the linking cases against Google don’t show us the fragility of the Internet so much as they show us that the presumptions that infect much of the analysis of this and similar cases (hard-working, news-gathering, information-disseminating journalists=good; free-riding repackager=bad) are hopelessly out of date. Twenty-plus years ago, the cable TV industry exploited the same kind of conceptual muddle, packaging cable networks as First Amendment speakers in order to minimize tax burdens and municipal regulation even while cursed by a copyright structure that requires that it pay retransmission fees to content generators. The cable companies mostly won that battle (minimizing the regulatory burden, though not thoroughly capturing the rhetorical First Amendment flag) but are now dealing with new ones (cf. the Supreme Court’s Brand X decision). Legally privileging a specific form of content delivery, such as cable television, is often a losing proposition in the long term, for both consumers and, ultimately, for that industry itself. Perhaps the best example of the phenomenon is the ironically-named Newspaper Preservation Act of 1970, which exempted Joint Operating Agreements for daily metropolitan newspapers from Sherman Act examination; newspapers were deemed an “essential” mechanism for keeping democracy alive, and legally-protected daily paper duopolies in many of the nation’s largest cities were deemed more important than common principles of competition and monopoly. Roughly three dozen JOAs were in existence at the time or sprang up in the wake of the statute; only about a third of them live today.

There’s an echo of this problem in some of the more absolutist opinions on both sides of the net neutrality debate, but I’ll stick to journalism for now. Do the Belgian media threaten the Internet? Only in the most superficial, short-term sense, as my friends in Pittsburgh who used to work for the Pittsburgh Press (dec. 1992) might confirm. Protecting those papers ultimately killed many of them. It’s the media, not the Net, that are at greater risk today, and it’s up to the Belgians to decide their own future.

One thought on “Beer, Chocolate, and Google”

Let me be a devil’s advocate. I personally think that what Google does should be fine.

Google News doesn’t just link, it links and excerpts. And it does this for financial gain. I don’t think that linking by itself, or linking coupled with an original, human-written summary of what is on the other side of the link, would be bothersome to most newspapers. But the fact is that Google uses snippets from the original articles for their service, and they do this for each article they link to, often every article on a particular site. It is this use of their material, which is very extensive, that probably does go beyond fair use. (Under American law.)